Citation Nr: 1026878
Decision Date: 07/19/10 Archive Date: 07/28/10
DOCKET NO. 09-06 888A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical Center in Roseburg, Oregon
THE ISSUE
Entitlement to payment of unauthorized private medical expenses
incurred on or about September 2, 2008, for surgical repair of a
right shoulder rotator cuff tear.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
REMAND
The agency of original jurisdiction (AOJ) has indicated that the
Veteran served on active duty from April 1962 to August 1966.
This matter comes on appeal to the Board of Veterans' Appeals
(Board) on appeal of an August 2008 denial of a request for
payment of surgery scheduled for repair of a right shoulder
rotator cuff tear.
In this case, it appears that the AOJ adjudicated the claimant's
application under the provision of 38 U.S.C.A. § 1728 (West 2002
& Supp. 2010). This law allows for reimbursement for hospital
care or medical services for customary and usual charges of
emergency treatment for which such veterans have made payment,
but only where such emergency treatment was provided for (a) an
adjudicated service-connected disability, (b) a non-service-
connected disability associated with and held to be aggravating a
service-connected disability, (c) any disability of a veteran who
has a total disability permanent in nature from service-connected
disability, or (d) any illness, injury or dental condition of a
veteran who is a participant in a vocation rehabilitation program
and is medically determined to have been in need of care or
treatment to make possible the entrance into training or prevent
interruption of training, or hasten the return to training. The
AOJ apparently did not consider the Veteran's claim under the
Millennium Health Care and Benefits Act, codified at 38 U.S.C.A.
§ 1725 (West 2002 & Supp 2010). This law is addressed in
38 C.F.R. § 17.1002.
According 38 C.F.R. § 17.1002, payment or reimbursement for
emergency treatment for nonservice-connected disabilities in non-
VA facilities is made only if the following criteria are met:
(a) The emergency services were
provided in a hospital emergency
department or similar facility held
out as providing emergency care to the
public;
(b) The claim for payment or
reimbursement for the initial
evaluation and treatment is for a
condition of such nature that a
prudent layperson would have
reasonably expected that delay in
seeking immediate medical attention
would have been hazardous to life or
health (this standard would be met if
there was an emergency medical
condition manifesting itself by acute
symptoms of sufficient severity
(including severe pain) that a prudent
layperson who possesses an average
knowledge of health and medicine could
reasonably expect the absence of
immediate medical attention to result
in placing the health of the
individual in serious jeopardy,
serious impairment to bodily function,
or serious dysfunction of any bodily
organ or part);
(c) A VA or other Federal
facility/provider was not feasibly
available and an attempt to use them
beforehand would not have been
considered reasonable by a prudent
layperson (as an example, these
conditions would be met by evidence
establishing that a veteran was
brought to a hospital in an ambulance
and the ambulance personnel determined
that the nearest available appropriate
level of care was at a non-VA medical
center);
(d) The claim for payment or
reimbursement for any medical care
beyond the initial emergency
evaluation and treatment is for a
continued medical emergency of such a
nature that the veteran could not have
been safely discharged or transferred
to a VA or other Federal facility (the
medical emergency lasts only until the
time the veteran becomes stabilized);
(e) At the time the emergency
treatment was furnished, the veteran
was enrolled in the VA health care
system and had received medical
services under authority of 38 U.S.C.
Chapter 17 within the 24-month period
preceding the furnishing of such
emergency treatment;
(f) The veteran is financially liable
to the provider of emergency treatment
for that treatment;
(g) The veteran has no coverage under
a health-plan contract for payment or
reimbursement, in whole, or in part,
for the emergency treatment (this
condition cannot be met if the veteran
has coverage under a health-plan
contract but payment is barred because
of a failure by the veteran or the
provider to comply with the provisions
of that health-plan contract, e.g.,
failure to submit a bill or medical
records within specified time limits,
or failure to exhaust appeals for a
denial of payment);
[The language underlined above-"or
in part"-was deleted from the
statute on which this regulation was
based by amendment in 2010. Pub.L.
111-137, § 1(a)(1)]
(h) If the condition for which the
emergency treatment was furnished was
caused by an accident or work-related
injury, the claimant has exhausted
without success all claims and
remedies reasonably available to the
veteran or provider against a third
party for payment of such treatment;
and the veteran has no contractual or
legal recourse against a third party
that could reasonably be pursued for
the purpose of extinguishing, in whole
or in part, the veteran's liability to
the provider; and
(i) The veteran is not eligible for
reimbursement under 38 U.S.C. 1728 for
the emergency treatment provided.
See 38 C.F.R. § 17.1002. The Board notes that 38 U.S.C.A. § 1725
was amended in October 2008. In particular, subsection (a)(1)
was amended by striking "may reimburse" and inserting "shall
reimburse." Also, in subsection (f)(1), relating to
definitions, the existing subparagraph (C) was struck and a new
subparagraph (C) was inserted in describing the period of
emergency treatment to read as follows:
(C) until -
(i) such time as the veteran can
be transferred safely to a Department
facility or other Federal facility and
such facility is capable of accepting
such transfer; or
(ii) such time as a Department
facility or other Federal facility
accepts such transfer if -
(I) at the time the
veteran could have been transferred
safely to a Department facility or
other Federal facility, no Department
facility or other Federal facility
agreed to accept such transfer; and
(II) the non-Department
facility in which such medical care or
services was furnished made and
documented reasonable attempts to
transfer the veteran to a Department
facility or other Federal facility.
Pub. L. No. 110-387, § 402, 122 Stat 4110, 4123 (2008) and
codified at 38 U.S.C.A. § 1725(f)(1)(C) (West Supp. 2010).
What is difficult to tell from the record that the AOJ has
forwarded to the Board is whether the Veteran in fact qualifies
for consideration under 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725,
or neither. The AOJ has listed certain disabilities in its
statement of the case (SOC) for which the AOJ believed he was
service connected, but it is not clear from the record that this
is accurate, or for that matter whether the surgery for which the
Veteran claims reimbursement was for a non-service-connected
disability that might be held to be aggravating a service-
connected disability. (According to the AOJ, the Veteran is
service connected for a psychiatric disability and other service-
connected musculoskeletal disabilities, any one of which might be
aggravated by shoulder injury.) In order to better ascertain the
Veteran's status, the claims file maintained at the regional
office (RO) should be secured and forwarded to the Board.
As for the manner of adjudication, it appears that the AOJ
repeatedly found in denials of the claim set forth in August
2008, September 2008 and November 2008 that the service required
by the Veteran (rotator cuff repair) was available through a VA
facility. Nevertheless, when the denial was communicated to the
Veteran it appears that he was told that the denial was based on
the absence of any indication that the care he required was
emergent. (If this was so, it does not appear that the AOJ
applied the definition of "emergency treatment" as established
by the amended versions of 38 U.S.C.A. § 1725 or 38 U.S.C.A.
§ 1728-the "prudent layperson" standard.
The Veteran has indicated that he was told by private physicians
that delay in the surgery for the rotator cuff tear would result
in serious impairment of function because of increased damage to
muscles and other structures. It is not clear whether evidence
on this point was ever obtained, although an August 20, 2008,
form entitled, "Roseburg VA Outpatient Authorization Request"
includes annotations regarding a diagnosis of a "massive"
rotator cuff tear with a need for operative repair that was
desired as soon as possible, preferably within a week. As noted
above, the prudent layperson standard that now applies to both
38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728 situations requires
that the determination be based on a layperson's knowledge and
expectation regarding the absence of immediate care and its
effect on bodily functions or a body part. Here, the Veteran
alleges that he was told that he would have greater debility the
longer he waited for repair, and it also appears that VA did not
secure a consultation appointment for the Veteran until about
September 22, 2008, with an expectation that surgery might not be
scheduled until November or December.
Because of the amendments to 38 U.S.C.A. § 1725 and 38 U.S.C.A.
§ 1728, which do not appear to have been taken into account by
the AOJ in the adjudication of this case, because of the
allegations of the Veteran regarding the advice he received about
the effect of postponing surgical correction of the rotator cuff
tear, and because further evidentiary development is required to
make a complete record, this case will be REMANDED to the AOJ for
the following actions:
1. The AOJ should notify the Veteran in
accordance with the Veterans Claims Assistance
Act of 2000 regarding the evidence necessary to
substantiate his claim for reimbursement. The
notice to the Veteran should include
notification of what is required to
substantiate a claim under 38 U.S.C.A. § 1725
as amended, and 38 U.S.C.A. § 1728 as amended.
He should be specifically told that evidence
from his private physicians regarding the
nature of his disability and the need for
emergent care would help substantiate his
claim. He should also be told of the
definition of "emergency treatment" as set
forth in 38 U.S.C.A. § 1725 (West Supp. 2010).
The Veteran should be asked to disclose any
information regarding health insurance coverage
that may have paid for all expenses related to
the 2008 shoulder surgery. (The AOJ may also
need to contact the care provider to ascertain
whether the Veteran owed any monies that were
not covered by a third party contract.) He
should be given opportunity to respond.
2. The AOJ should seek treatment records from
Dr. Bell and Dr. Williams relative to the right
shoulder rotator cuff tear. Records that
relate to the surgery that was performed in
September 2008 should also be obtained. Any
letter by Dr. Bell providing justification for
surgery that may have been sent to the fee
basis office of Roseburg VA should be sought
and included in the file. The Veteran's
assistance in securing these records should be
sought, especially in terms of his providing
consent to release the records.
3. The Veteran's claims file should be secured
from the RO. Additionally, all notes or
memoranda prepared by the fee basis office with
which the Veteran made contact in an attempt to
seek VA care should be secured and included in
the record.
4. A VA medical professional with expertise in
physical and psychiatric disabilities should be
asked to review the files and provide a medical
opinion as to whether the right shoulder injury
was of such a nature that it could be found to
have been aggravating any service-connected
disability--such as the Veteran's psychiatric
disability or other service-connected
musculoskeletal disability. (If an examination
is required to arrive at such an opinion, one
should be scheduled.)
5. The AOJ should again adjudicate the
Veteran's claim. Consideration should be given
to 38 U.S.C.A. § 1725 as amended, and
38 U.S.C.A. § 1728 as amended. (The definition
of "emergency treatment" as set forth in
38 U.S.C.A. § 1725 (West Supp. 2010) should be
used.) If the benefit sought is not granted, a
supplemental statement of the case should be
issued. It should include references to both
38 U.S.C.A. § 1725 (West 2002 & Supp. 2010) and
38 U.S.C.A. § 1728 (West 2002 & Supp. 2010).
The Veteran and his representative should be
given opportunity to respond. (A VA Form 646
should be specifically sought from the
Veteran's representative-Military Order of the
Purple Heart of the U.S.A.-before the case is
returned to the Board.)
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.
2010).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).